Commonwealth v. Khiri Arter, 63 MAP 2015 (12/28/16)
This is the 5th decision in a month that the Supreme Court has ruled in favor of a criminal defendant!
Khiri Arter was arrested when his county probation officer, cruising with a police officer in an unmarked car in a high drug activity area, saw him conversing with another guy on a street corner. The PO asked the officer to stop the car, and the PO approached him. He told Mr. Arter he was his PO, gave him reporting instructions, and then asked if he could search him, a question Mr. Arter met with incredulity. The PO nevertheless patted him down. Found a bulge, and the bulge was crack cocaine. Mr. Arter was arrested, a search incident to the arrest yielded more drugs, a scale, and a cell phone, and he was charged by the police with PWID and by the PO with a violation.
Before his trial on the charges, Mr. Arter sought and obtained suppression of the drugs because the search violated 42 Pa.C.S §9912(D)(1)(i) ((1) A personal search of an offender may be conducted by an officer: (i) if there is a reasonable suspicion to believe that the offender possesses contraband or other evidence of violations of the conditions of supervision; (ii) when an offender is transported or taken into custody; or (iii) upon an offender entering or leaving the securing enclosure of a correctional institution, jail or detention facility.) The case was nolle prossed. Before the parole revocation hearing, Mr. Arter moved to suppress too, but not under the 4th Amendment, because the search was not barred by that, but rather Article I, §8 of the Pa. Constitution. The motion was denied, and his parole revoked. The Superior Court affirmed.
The Supreme Court performed the very detailed analyses required by Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991) when a defendant asserts that Pa.’s search and seizure protections are greater than those afforded by the Fourth and Fourteenth Amendments. You should read it so you know how to raise these issues going forward, because it places a lot of emphasis on how the issue is pled and litigated below— that is critical to preserving the issue. Doing that analysis in this case, and relying especially on the fact that the legislature had passed a law restricting the circumstances under which probationers and paroles could be searched, it concluded that we conclude that the policy interests in this Commonwealth weigh more strongly in favor of applying the exclusionary rule to parole and probation proceedings. Importantly, and in contrast to 4th Amendment suppression rationale, the Court concluded, “application of the exclusionary rule to revocation proceedings is in accord with this Court’s consistent and repeated emphasis that the primary purpose of the exclusionary rule under Article I, Section 8, is protecting the individual privacy rights of our citizens, as opposed to deterring police misconduct.”
That I am quoting this case so much means you should read it carefully— rote insertion of Article I, §8 next to the 4th Amendment in your suppression motions might not be enough to preserve your claims.
The image is of John Dickinson’s copy of the Pennsylvania constitution of 1776, with handwritten proposals for changes, from Foner, Give Me Liberty: An American History, Fourth Edition